Citation NR: 9706210
Decision Date: 02/24/97 Archive Date: 03/04/97
DOCKET NO. 94-42 448 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to service connection for a left knee
disability, secondary to a service-connected right knee
disability.
2. Entitlement to an increased rating for residuals of a
right knee injury, with traumatic arthritis, currently rated
20 percent disabling.
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
WITNESSES AT HEARINGS ON APPEAL
Appellant and his wife
ATTORNEY FOR THE BOARD
Gregory W. Fortsch, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1987 to October
1988.
This matter comes before the Board of Veterans’ Appeals
(Board) on appeal from a June 1992 rating action by the
Oakland, California, Regional Office (RO) of the Department
of Veterans Affairs (VA). In December 1996, a hearing was
held at the RO before the undersigned Member of the Board.
In December 1992 and October 1993, hearings were held at the
RO before hearing officers. Transcripts of all of these
hearings are of record.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that he should be granted an increased
rating as his right knee demonstrates severe instability. He
claims that the knee gives out on him at least twice a month
and sometimes 3 or 4 times a day. The veteran also contends
that his right knee disability depends on how often he walks,
whether he goes up or down stairs or steps, and whether he
must squat to pick up boxes. He adds that the disability
affects him at work as well. With regard to his left knee,
he claims that service connection should be granted because
injury to the knee was caused by his service-connected right
knee. He states that his left knee was originally injured
when he fell off a ladder. While he was falling, he states
that he attempted to avoid injury to his service-connected
right knee by landing on his left knee. He also notes that
he further injured his left knee when falling down stairs at
his home after his right knee buckled. Finally, the veteran
takes issue with the VA examinations he has undergone, which
he describes as mediocre and bereft of in-depth consideration
of the possibility of degenerative arthritis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 199), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the preponderance of the
evidence is against the claim for a rating in excess of 20
percent for residuals of a right knee injury, with traumatic
arthritis. It is also the decision of the Board that the
veteran has failed to submit a well-grounded claim for
service connection for a left knee disability.
FINDINGS OF FACT
1. The claim for service connection for a left knee
disability is not plausible.
2. The veteran’s right knee disability is manifested by
subjective evidence of pain, stiffness and some locking as
well as objective evidence of mild to moderate instability;
there is no evidence of swelling of the knee and range of
motion is from 0 degrees of extension to 130 degrees of
flexion.
CONCLUSIONS OF LAW
1. The claim for service connection for a left knee
disability as secondary to a service-connected right knee
disability is not well-grounded. 38 U.S.C.A. § 5107(a) (West
1991).
2. The requirements for a rating in excess of 20 percent for
residuals of a right knee injury, with traumatic arthritis,
have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991);
38 C.F.R. § 4.71, Diagnostic Code 5257 (1996).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection Claim
Under the law, service connection can be granted for any
disability resulting from disease or injury incurred in or
aggravated during active military service. 38 U.S.C.A.
§§ 1110, 1131 (West 1991). In a claim to establish service
connection, a claimant is always obliged to present evidence
of a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991).
A well-grounded claim is simply a plausible one, which means
that it is either meritorious on its own or capable of
substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990).
It has also been determined that a well-grounded claim
requires medical evidence of a current disability, lay or
medical evidence of a disease or injury in service, and
medical evidence of a link between the current disability and
the in-service injury or disease. Caluza v. Brown, 7
Vet.App. 498 (1995). If a claim is not well-grounded, then
no duty to assist the claimant attaches to the VA under 38
U.S.C.A. § 5107(a).
Secondary service connection can also be granted for a
disability under the law. Disability which is proximately
due to or the result of a service-connected disease or injury
shall be service-connected. See 38 C.F.R. § 3.310 (1996).
In a claim for secondary service connection for a diagnosis
clearly separate from the service-connected disorder, the
veteran must present evidence of a medical nature to support
the alleged causal relationship between the service-connected
disorder and the disorder for which secondary service
connection is sought, in order for the claim to be well-
grounded. See Jones v. Brown, 7 Vet.App. 134 (1994).
Service medical records (SMRs) indicate that the veteran was
diagnosed with prepatellar bursitis of the left knee in April
1988. No further evidence of continuing disability to the
left knee in service was shown. Following service, the
veteran underwent arthroscopic surgery on the left knee in
November 1990 after falling off a ladder while on the job.
In November 1991, a VA examiner diagnosed an old left knee
injury with a probable anterior cruciate ligament tear.
In December 1992, the veteran testified that the entry in his
SMRs regarding his left knee was a mistake. See December
1992 Hearing Testimony (T1), p. 2. He indicated that the
only treatment he received in service was for the right knee.
Id. at 2, 3. The veteran related that he fell about 4 feet
off of a faulty ladder when it gave way while working. Id.
at 3, 4. He added that he landed on his left knee in order
to protect his service-connected right knee from further
injury. Id.
In April 1993, the veteran underwent a VA examination. The
examiner found no objective evidence of inflammation of the
left knee. He commented that the veteran had bilateral
anterior cruciate ligament deficiencies which were either
congenital or post-traumatic.
In October 1993, the veteran testified regarding the accident
with the left knee he described at the December 1992 hearing.
See October 1993 Hearing Transcript (T2), p. 7. He also
related that he fell down the stairs at his home in August
1993 after his right knee gave way and injured his left knee
in the process. Id. at 1.
Finally, in December 1996, the veteran testified that he had
no previous history of left knee injury prior to the incident
in which he fell off the ladder. See December 1996 Hearing
Transcript (T3), p. 4. The veteran indicated that he was
attempting to obtain a statement from a private physician
regarding the relationship between his left and right knee
disabilities. Id. at 5. The veteran added that both of his
knee disabilities limited his employment opportunities. Id.
at 7.
Based on the evidence described above, the Board concludes
that the veteran’s claim for service connection for a left
knee disability as secondary to a service-connected right
knee disability is not well-grounded. The veteran has
expressly stated that he did not incur a left knee injury in
service, and that the SMR showing bursitis of the left knee
in April 1988 was in error; rather, he claims that the left
knee injury is solely related to a fall from a ladder in
which he attempted to protect his right knee by falling on
the left. In terms of secondary service connection, the
veteran has not submitted evidence of a medical nature to
support the alleged causal relationship between his service-
connected right knee and the disorder of the left knee for
which secondary service connection is sought. As a result,
his claim must be denied. The medical evidence in the claims
file clearly shows that the veteran has a current left knee
disability, but there is no medical evidence showing that it
is related to service. In fact, the medical evidence,
including the August 1993 VA examination report, points to
the fact that the veteran’s left knee disability may be
congenital. The veteran stated at his December 1996 hearing
that he might submit medical evidence showing a relationship
between his right and left knee injuries, but no evidence has
been received to date.
It is clear that the veteran genuinely and sincerely believes
that his left knee disability is related to his service-
connected right knee disability, as is illustrated by the
veteran’s testimony and letters. The veteran is not a
licensed medical practitioner, however, and he is not,
therefore, competent to offer opinions on questions of
medical causation or diagnosis. Grottveit v. Brown, 5
Vet.App. 91 (1993); Espiritu v. Derwinski, 2 Vet.App. 492
(1992).
Although the VA does not have a statutory duty to assist a
claimant in developing facts pertinent to his claim where
claims are deemed to be not well-grounded, the VA may be
obligated under 38 U.S.C.A. § 5103(a) to advise a claimant of
evidence needed to complete his application. This obligation
depends upon the particular facts of the case and the extent
to which the Secretary of the VA has advised the claimant of
the evidence necessary to be submitted with a VA benefits
claim. Robinette v. Brown, 8 Vet.App. 69 (1995).
In this case, the RO fulfilled its obligation under section
5103(a) in the June 1992 Statement of the Case and subsequent
supplemental Statements of the Case in which the veteran was
informed of the reasons for the denial of his claim.
Furthermore, by this decision, the Board is informing the
veteran of the evidence which is lacking and that is
necessary to make his claim well-grounded. In light of the
fact that the veteran has failed to present evidence of a
medical nature to support the alleged causal relationship
between the service-connected right knee disability and the
left knee disability for which secondary service connection
is sought, the claim for service connection for a left knee
disability must be denied.
II. Increased Rating Claim
Initially, the Board notes that the veteran’s increased
rating claim is found to be well-grounded under 38 U.S.C.A.
§ 5107(a). That is, he has presented a claim which is
plausible. Murphy v. Derwinski, 1 Vet.App. 78 (1990). In
general, an allegation of increased disability is sufficient
to establish a well-grounded claim seeking an increased
rating. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The
Board is also satisfied that all relevant facts have been
properly developed, and that no further assistance to the
appellant is required in order to satisfy the VA’s duty to
assist him mandated by 38 U.S.C.A. § 5107(a).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. See Francisco v.
Brown, 7 Vet.App. 55 (1994); 38 C.F.R. § 4.2 (1996).
Disability evaluations are determined by the application of
the VA’s Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4. The percentage ratings contained in the
Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
§ 4.1 (1996). The Rating Schedule provides for a compensable
rating for impairment of the knee when there is evidence of
slight (10 percent), moderate (20 percent), or severe (30
percent) recurrent subluxation or lateral instability. See
38 C.F.R. § 4.71, Diagnostic Code 5257 (1996).
SMRs indicate that the veteran sustained an injury to his
right knee in January 1988 after a fall on the flight deck of
a ship. Diagnoses, according to an August 1988 statement
from a Naval Hospital physician to the president of the
Physical Evaluation Board, included an anterior cruciate
ligament rupture of the right knee and post-traumatic
chondromalacia of the patella. The physician stated that the
veteran was unfit for military duty because of this physical
disability.
In February 1991, the veteran underwent a VA examination.
The veteran complained of buckling, swelling and pain in the
right knee. He added that he had experienced frequent
instability and occasional locking of the right knee and had
fallen occasionally. The examiner noted in his report that
the veteran walked with a limp on the left but not on the
right. He stated that the right knee looked normal in
appearance, and there was no redness, swelling or crepitus.
A strongly positive anterior drawer sign was noted and the
veteran could almost sublux his knee anteriorly. There was
no evidence of lateral or medial instability and he had full
range of motion of the knee with 0 degrees of extension to
140 degrees of flexion. X-ray studies revealed extremely
small tibial osteophytes, but no significant degree of
degenerative disease. There was no effusion and no evidence
of dislocation or fracture. The veteran was said to have had
extreme difficulty squatting, and was diagnosed with an old
injury of the right knee with instability and degenerative
changes. In April 1991, the RO granted service connection
for residuals of an injury to the right knee with arthritis,
and assigned a 20 percent rating effective October 1988.
In November 1991, the veteran had another VA examination. He
complained of more frequent buckling of the knees as well as
stiffness and pain. He also noted that he had had frequent
locking of the knees and a chronic ache which was made worse
by bending and walking. He stated that he had recurrent
swelling, but was not taking any medication. The examiner
noted that the veteran had a limp on the left. He found no
evidence of swelling, redness or increased warmth in the
right knee and there was full range of motion. A +1 positive
anterior drawer sign was shown, but there was no evidence of
medial or lateral instability. X-ray films indicate that
there was mild irregularity along the right lateral femoral
condyle and proximal lateral tibia along with irregularity of
the right tibial spines which represented very mild
degenerative change likely the result of prior trauma. No
significant joint space narrowing was shown and there was no
soft tissue swelling or effusion. The examiner diagnosed an
old injury of the right knee.
In December 1992, the veteran testified that his right knee
disability had gotten much worse and that he experienced
constant swelling in the knee. See T1, pp. 6-8. The veteran
stated that his right knee became worse whenever he did
excessive walking, squatting or bending and he also described
a burning sensation and stiffness in the knee. Id. at 9, 10.
The veteran indicated that pain in the right knee sometimes
radiated to his shins, but that he was not taking any
medicine for the knee. Id. at 11. The veteran further
testified that his right knee buckled on a regular basis and
that he experienced some minimal locking as well as soreness
upon full extension of the knee and stiffness in the morning.
Id. at 11, 12. The veteran added that he often had trouble
going down stairs because of the knee, and that treatment of
the knee was neither useful nor convenient. Id. at 13. The
veteran stated that he had been given braces for both knees
by a private physician. Id. at 15. His wife testified that
the veteran’s problems affected the whole family in that she
sometimes had to send their children to relatives in order to
take care of the veteran. Id. at 16, 17.
At an April 1993 VA examination, the veteran complained of
constant “going out” of the knees as well as pain, morning
stiffness and some locking. There was no fluid or swelling
of the knees, but there were positive Lachman’s and anterior
drawer signs. McMurray’s test was negative, and there was no
mediolateral instability. There was some posterior medial
joint tenderness over the posterior horn of both medial
menisci bilaterally, but no patellar tenderness was
demonstrated. Range of motion of both knees was from 0
degrees of extension to 130 degrees of flexion. Instability,
according to the examiner, was of a mild to moderate nature.
The examiner concluded that there was no inflammation in
either knee and that the veteran’s present condition was
either congenital or post-traumatic. He noted that the
veteran was able to squat and get up from a squatting
position and that x-ray examination of both knees was normal.
An August 1993 VA outpatient treatment record indicated that
the veteran had chronic knee damage with new trauma, but did
not mention which knee was involved.
In October 1993, the veteran testified that his right knee
buckled an average of twice a day. See T2, p. 4. He stated
that he had pain in his right knee after a long day, and was
taking extra strength Tylenol to relieve the pain. Id. at 5.
He stated that any exertional activity brought on soreness in
the right knee, and added that the disability had affected
his employment prospects. Id. at 6.
In December 1996, the veteran testified that he had
experienced buckling, locking and stiffness in the right knee
and had visited the VA hospital in Palo Alto, California for
quick visits and painkillers. Id. at 8, 11-12. He further
testified that he had been given braces for both knees by a
private doctor, but only used them when doing physical
activity. Id. at 9. He was not wearing any at the hearing.
Id. at 13. The veteran’s wife testified as to the veteran’s
continued problems with the right knee and stated that her
husband had fallen down some stairs because of the knee. Id.
at 9, 10.
The Board concludes that the veteran is not entitled to a
rating in excess of 20 percent at this time for his right
knee disability. The most recent medical evidence of record,
an April 1993 VA examination report, shows instability in the
right knee of a mild to moderate nature which is commensurate
with the 20 percent rating currently assigned. The next
higher rating of 30 percent under 38 C.F.R. § 4.71,
Diagnostic Code 5257 requires evidence of severe instability,
which is clearly not shown by the objective medical evidence
at this time. The veteran is also not entitled to a higher
rating under other applicable diagnostic codes. For
instance, a rating in excess of 20 percent for limitation of
flexion or extension under 38 C.F.R. § 4.71, Diagnostic Codes
5260 and 5261 (1996), would require evidence of flexion
limited to 15 degrees and extension limited to 20 degrees,
which is clearly not shown here. The most recent VA
examination report shows range of motion of both knees to be
from 0 degrees of extension to 130 degrees of flexion. There
is also no showing of ankylosis or other impairment to
entitle the veteran to a higher rating under other applicable
codes. See 38 C.F.R. § 4.71, Diagnostic Codes 5256, 5262
(1996).
The Board acknowledges the veteran’s complaints about the
possibility of degenerative arthritis in his right knee, but
notes that the evidence of record shows no more than mild
arthritic changes. The Board also acknowledges the veteran’s
concerns about the adequacy of the VA examinations he has
undergone. The Board has determined that the criteria
required to rate the veteran’s disabilities, including
instability, pain and limitation of motion, were sufficiently
addressed in the VA examination reports of record.
As shown above, the Board has considered all potentially
applicable provisions of 38 C.F.R. Parts 3 and 4, whether or
not they have been raised by the veteran or his
representative, as required by Schafrath v. Derwinski, 1
Vet.App. 589 (1991). In this case, the Board finds no
provision upon which to assign a higher rating. Furthermore,
the Board recognizes that there are situations in which the
application of 38 C.F.R. §§ 4.40, 4.45, or 4.59 is warranted
in order to evaluate the existence of any functional loss due
to pain, or any weakened movement, excess fatigability,
incoordination, or pain on movement of the veteran’s joints.
However, in this case, where the diagnostic code under which
the veteran is rated, 38 C.F.R. § 4.71, Diagnostic Code 5257,
is not predicated on loss of range of motion, §§ 4.40 and
4.45, with respect to pain, do not apply. See Johnson v.
Brown, 9 Vet.App. 7 (1996). With respect to the other
factors, the veteran in this case does not exhibit weakness,
deformity, atrophy, fasciculation, or other signs of
disability greater than the moderate impairment recognized by
the current evaluation. Thus, the Board finds that 38 C.F.R.
§§ 4.40, 4.45 or 4.59 do not provide a basis for a higher
rating.
The Board has reviewed all of the evidence in the veteran’s
claims file. Accordingly, the Board concludes that the
preponderance of the evidence is against the claim for a
rating in excess of 20 percent for a right knee disability.
ORDER
The appeal for service connection for a left knee disability
as secondary to the service connected right knee disability
is denied.
The appeal for a rating in excess of 20 percent for a right
knee disability is denied.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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